A federal court in the Eastern District of Kentucky recently issued an order vacating the 2024 Title IX Final Rule.
The court concluded the Department of Education (“Department”) exceeded its statutory authority with the Final Rule. According to the court’s opinion, the Department cited the case of Bostock v. Clayton County, Ga. In support of the Final Rule. In Bostock, the Supreme Court concluded termination of an employee because of transgender status violated the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964. The Supreme Court noted that “transgender status [is] inextricably bound up with sex,” and therefore concluded discrimination based on transgender status meant the employer was intentionally treating the person differently because of their sex.
The Eastern District of Kentucky, however, determined the Department was applying the Bostock holding too broadly. The court noted the Bostock holding was expressly limited to Title VII. Furthermore, the Sixth Circuit previously acknowledged that the definition of discrimination under Title VII under Bostock did not apply to other anti-discrimination laws. The court also pointed out that Title VII and Title IX “use materially different language.” Title VII references discrimination “because of sex,” while Title IX prohibits discrimination “on the basis of sex.” Additionally, Title VII and Title IX have different goals and different defenses. Tennessee v. Cardona.
The court considered Title IX in its entirety and concluded “it is abundantly clear that discrimination on the basis of sex means discrimination on the basis of being a male or female.” The court noted that Title IX “is rife with exceptions that allow males and females to be separated. . . ,” including in living facilities and social sororities and fraternities.
The court concluded “the Final Rule offends the First Amendment. . .” The court reasoned that the definitions for sex discrimination and sex-based harassment would require teachers to use a student’s preferred name and pronouns based on their “asserted gender identity.”
The court also concluded the Final Rule “is vague and overbroad,” determining that the Final Rule’s prohibition on harassment exceeded the Supreme Court’s holding that a private cause of action under Title IX must be based on “severe, pervasive, and objectively offensive” harassment. Davis v. Monroe Cnty. Bd. of Education.
The court further concluded that the Final Rule violated the Spending Clause because the conditions on receiving federal funds “must not induce unconstitutional action.” S. Dakota v. Dole. The court noted that Title IX does not condition federal funding on the prohibition of discrimination based on gender identity. Congress is responsible for providing notice of any conditions or obligations under a spending law.
The court also concluded the Final Rule was arbitrary and capricious. The court stated the Department had not given a reasoned explanation for changing its Title IX interpretation. The court also stated the Department did not address “glaring inconsistencies” that would be created in Title IX, noting that the Department acknowledged separation by sex was allowed in some circumstances, but the new regulations would prohibit separation by sex for bathrooms and showers.
The court determined that entire rule was tainted by the Final Rule, pointing out that other requirements in the final rule referred to and incorporated the invalid provisions. It therefore concluded that vacatur was the appropriate remedy. The court also granted the declaratory relief requested by the plaintiffs with a revision, refusing to state that they were “entitled to funding irrespective of their compliance with the Rule” because they might be ineligible for federal funding due to Title IX violations that were not related to the Final Rule. Instead, the court stated the plaintiffs “need not comply with the Rule to receive federal funding.”
The court granted the plaintiffs’ motion for summary judgment and denied the government’s motion for summary judgment.
This decision means that the 2024 Title IX Final Rule is vacated and the 2020 rule and regulations are back in effect nationwide, which will remove protections related to gender identity but reinstate certain procedural protections for accused students. This may lead to significant confusion for schools in the coming months, especially in states, such as Washington, that did not participate in the lawsuits. If you are facing Title IX allegations, you need a knowledgeable Washington Title IX defense attorney to protect your rights during the investigation and disciplinary process. Set up a consultation with Blair & Kim, PLLC, by calling (206) 622-6562. We also are experienced in criminal defense and can be prepared to assist with any related criminal matters.